Anita Jayant Oswal vs Jt. District Registrar And Collector Of Stamps, Pune City , Pune And Anr
- Court
- Bombay High Court
CNR No : HCBM010066852019
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5964 OF 2019
Anita Jayant Oswal
… Petitioner
Vs.
1. Joint District Registrar and Collector
of Stamps, Pune City, Pune
ATUL
GANESH
KULKARNI
2. Inspector General of Registration and
Controller of Stamps
… Respondents
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.10.26
13:00:36 +0530
WITH
WRIT PETITION NO.6199 OF 2018
Vineet Kumar Yadav
… Petitioner
Vs.
1. The State of Maharashtra
2. The Chief Controlling Revenue
Authority, Maharashtra State, Pune
3. Joint District Registrar & Collector
of Stamps, Nashik
4. Amit Builders
… Respondents
Mr. Sanskar Marathe for the Petitioner in
WP/5964/2019.
Mr. Ajay L. Bhise for the Petitioner in WP/6199/2018.
Mr. Anirudha Garge, ‘B’ Panel Advocate with Smt. V.R.
Raje, AGP for Respondent Nos.1 and 2-State in
WP/5964/2019.
Smt. Mamta Shrivastava, AGP for Respondent Nos.1 to
3- State in WP/6199/2018.
Mr. Adesh M. Patil for Respondent No.4 in
WP/6199/2018.
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CORAM : AMIT BORKAR, J.
RESERVED ON : OCTOBER 19, 2026.
PRONOUNCED ON : OCTOBER 26, 2026
JUDGMENT:
1. Since both Writ Petitions raise a common question of law,
they are being decided together by this common judgment.
2. In Writ Petition No. 5964 of 2019, filed under Articles 226
and 227 of the Constitution of India, the Petitioner challenges the
legality and correctness of the order dated 3 March 2018 passed by
the District Registrar and Collector of Stamps, Pune City, Pune, in
Refund Case No. C.R. 904 of 2017. The Petitioner challenges the
order dated 26 October 2018 passed by the Chief Controlling
Revenue Authority in Appeal No. 78 of 2018.
3. According to the Petitioner, the facts leading to the filing of
Writ Petition No. 5964 of 2019 are as follows. On 29 March 2017,
the Petitioner paid the required stamp duty for registration of an
agreement for sale of immovable property. However, before the
transaction could be completed, the stamp paper was misplaced. A
police complaint was lodged in this regard. Thereafter, on 4 July
2017, the Petitioner paid the same stamp duty once again for the
very same transaction so that the agreement could be registered.
The registration was then completed. Since the stamp duty paid
earlier had remained unused, the Petitioner applied for its refund
under Sections 47 and 48 of the Stamp Act. However, the
application was rejected on 3 March 2018. On 26 October 2018,
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the Petitioner filed an appeal under the provisions of the Act,
challenging the rejection of the refund application. After hearing
the Petitioner, the Appellate Authority dismissed the appeal. Since
no appeal is available against the said order, the Petitioner has
approached this Court by filing the present Writ Petition.
4. Mr. Marathe, learned Advocate appearing for the Petitioner,
submits that the Petitioner has paid stamp duty and registration
charges twice for one transaction. According to him, this clearly
shows that an excess amount was paid towards stamp duty and
registration charges. He submits that, on this ground alone, the
authorities below ought to have directed the refund of the excess
amount paid by the Petitioner. Mr. Marathe submits that the stamp
duty paid through the first ESBTR was not used for any other
document. The amount remained unused and continued to be with
the Respondents. According to him, the amount ought to have
been refunded. He submits that the refund application was
rejected only because the original ESBTR had been misplaced,
even though the Petitioner had paid stamp duty twice for the same
transaction and the first payment had remained unused. He argues
that refusing the refund would allow the State Government to
retain double stamp duty for a single transaction, resulting in
unjust enrichment. He submits that the authorities could have
verified whether the first ESBTR had been used for any other
document. Once such verification showed that the stamp duty had
remained unused, the authorities ought to have treated the
amount as excess payment and ordered its refund. By failing to do
so, according to the learned Advocate, both the authorities below
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committed an error in passing the impugned orders.
5. In Writ Petition No. 6199 of 2018, filed under Articles 226
and 227 of the Constitution of India, the Petitioner challenges the
legality and correctness of the order dated 2 August 2017 passed
in Refund Case No. C.R. 11 of 2018. The Petitioner challenges the
order dated 20 December 2017 passed in Appeal No. 286 of 2017.
6. According to the Petitioner, the facts leading to the filing of
this Writ Petition are as follows. The Petitioner approached a
builder, M/s. Amit Builders, through its partner, for purchasing a
flat in the project known as EKA ONE LIFE. The Petitioner booked
Flat No. 502, T-Wing, in the said project, situated at Survey No. 1,
Wadala, Pathardi, Nashik, 422010. The total consideration for the
flat was Rs. 51,36,845 (Rupees Fifty-One Lakh Thirty-Six
Thousand Eight Hundred and Forty-Five only). Out of this amount,
the Petitioner initially paid Rs. 7,00,000 (Rupees Seven Lakh only)
to the builder. For the purpose of executing the agreement for sale,
the Petitioner paid Rs. 3,08,500 (Rupees Three Lakh Eight
Thousand Five Hundred only) towards stamp duty and Rs. 30,000
(Rupees Thirty Thousand only) towards registration fees. These
amounts were paid through an e-Secured Bank and Treasury
Receipt (ESBTR), bearing GRN No. MH004117486201617S,
Stationery No. 14085378215155, dated 8 September 2016.
7. On 3 November 2016, the Petitioner made a written request
to cancel the booking of the flat. The Petitioner requested the
builder to return the e-Secured Bank and Treasury Receipt
(ESBTR), bearing GRN No. MH004117486201617S and Stationery
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No. 14085378215155. However, on 9 December 2016, when the
Petitioner had gone to court in connection with the refund of
stamp duty, the original ESBTR bearing receipt No.
14085378215155, dated 8 September 2016, was lost. Thereafter,
on 13 December 2016, the Petitioner lodged a written complaint,
along with a supporting affidavit, at Sarkarwada Police Station,
Nashik. On 9 January 2017, the Petitioner applied to Respondent
No. 3 under Section 47 of the Maharashtra Stamp Act for a refund
of the stamp duty paid for the agreement for sale, which had not
been executed. The application was registered as Refund Case No.
C.R. 11 of 2017. However, Respondent No. 3 rejected the
application by order dated 2 August 2017. Thereafter, on 29
August 2017, the Petitioner filed an appeal under Section 53(1A)
of the Maharashtra Stamp Act before Respondent No. 2. The
appeal was registered as Appeal No. 286 of 2017. By order dated
20 December 2017, Respondent No. 2 agreed with the decision of
Respondent No. 3 and dismissed the appeal. Being aggrieved by
these orders, the Petitioner has filed the present Writ Petition
before this Court.
8. Mr. Bhise, learned Advocate appearing for the Petitioner,
submits that there is no allegation that the Petitioner’s claim for
refund is false or dishonest, or that the Petitioner has given any
incorrect information in support of the claim. He submits that the
application for refund was made within the time allowed by law
and the Petitioner is entitled to receive the refund of stamp duty.
He submits that the stamp duty was paid for the purpose of
executing an agreement for sale. However, the agreement could
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not be executed and the purpose for which the stamp was
purchased could not be fulfilled.
9. Mr. Bhise submits that the Petitioner’s case falls under
Section 47(c)(5) of the Maharashtra Stamp Act, which provides for
a refund where the stamp becomes spoiled because the intended
purpose could not be fulfilled. He submits that the Respondents
rejected the refund application because the Petitioner did not
produce the original e-Secured Bank and Treasury Receipt
(ESBTR). However, according to him, Section 47 does not
specifically require production of the original ESBTR. It only
requires the Petitioner to produce evidence in support of the claim
for refund. Therefore, the learned Advocate submits that the claim
ought not to have been rejected merely because the original
ESBTR was not available. In support of his submissions, Mr. Bhise
relies upon the judgment of the Supreme Court in Dr. Poornima
Advani and Another v. Government of NCT and Another, Civil
Appeal No. 2643 of 2025, decided on 18 February 2025.
10. Mr. Garge, learned Advocate, and Smt. Shrivastava, learned
Assistant Government Pleader appearing for the State, oppose the
Petition. They submit that the Petitioner has admitted in
paragraphs 3.3 and 3.4 at page 6 of the Petition that the original e-
SBTR was lost due to certain unavoidable circumstances.
According to them, the loss of the original receipt was due to the
Petitioner’s own negligence. They submit that the Petitioner’s
argument that the Respondents have not alleged that the refund
claim is false or dishonest does not help the Petitioner’s case. They
point out that the authorities have not rejected the claim on the
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ground that it was false or dishonest. The rejection was based on
the requirements of law. They submit that Section 52 of the
Maharashtra Stamp Act deals with the allowance for stamps which
are not required for use. According to them, the procedure for
refund of stamp duty paid through an e-SBTR is the same as the
procedure applicable to impressed stamps under the Act.
Therefore, the Bombay Stamp Rules, 1939, apply to the present
case. They rely upon Rule 22 of the said Rules and submit that the
original stamp must be produced for following the procedure
prescribed under that Rule.
11. The learned Advocates for the Respondents submit that the
Maharashtra Stamp Act does not permit a refund of stamp duty
merely on the basis of a photocopy or Xerox copy of the stamp.
According to them, the Act refers to the stamp, and the original
stamp is required for claiming a refund. They submit that the
original stamp has admittedly been lost by the Petitioner. Neither
the Act nor the Rules framed under it permit a refund in the
absence of the original stamp. They submit that the Petitioner has
misunderstood the provisions of Section 47 to support the claim
for refund. According to them, Section 47 deals with different
circumstances in which a stamp may become “spoiled” or
“useless”. However, the applicability of those provisions does not
remove the requirement of producing the original stamp where the
law prescribes such a requirement.
REASONS AND FINDINGS
12. Since both the Writ Petitions raise the same issue about
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refund of stamp duty paid through an e-Secured Bank and
Treasury Receipt (ESBTR), both the Petitions are being decided by
this common judgment. The main question is whether the refund
of stamp duty can be refused only because the original ESBTR is
lost, when the claim is that it was not used for any document and
the payment can be verified from the official records.
13. Section 47 of the Maharashtra Stamp Act provides for refund
or allowance in respect of stamps which have become spoiled in
the situations mentioned in that section. The opening part of the
section states:
“Subject to such rules as may be made by the State
Government as to the evidence to be required, or the enquiry
to be made, the Collector may, on application made within
the period prescribed in section 48, and if he is satisfied as to
the facts, make allowance for impressed stamps spoiled in
the cases hereinafter mentioned, namely :”
14. The words used in this provision show that the Collector
must be satisfied about the facts before allowing a refund. The
application must be made within the period mentioned in Section
48. The provision allows the State Government to make Rules
about what evidence is required and what enquiry has to be made.
Therefore, the person asking for refund must prove the claim with
proper evidence. However, the section does not specifically say
that every claim must be rejected only because the original stamp
cannot be produced, without checking why it is missing and
whether the payment and its non-use can be proved through other
reliable records.
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15. The Petitioners have relied upon Section 47(c)(5). This
provision deals with an instrument which does not achieve its
intended purpose for the reasons mentioned in the provision. The
relevant words are:
“by reason of the refusal of any person to act under the
same, or to advance any money intended to be thereby
secured, or by the refusal or non-acceptance of any office
thereby granted, totally fails of the intended purpose ;”
16. On reading this provision, it appears that it applies where
the intended purpose of an instrument fails because a person
refuses to act under it, refuses to advance the money which was
intended to be secured, or refuses to accept an office granted
under it. The mere fact that an ESBTR has been lost does not
satisfy the requirements of this clause. Therefore, I am unable to
accept the submission of the Petitioners that Section 47(c)(5)
automatically applies to every case where the original ESBTR is
lost. However, this finding does not mean that the claims of the
Petitioners must be rejected. Section 47 provides for different
situations where an allowance may be granted. Clause (a) deals
with a stamp on paper which has accidentally become spoiled,
obliterated or otherwise unfit for its intended purpose before an
instrument written on it is executed. Clause (b) deals with a stamp
on a document which has been written wholly or partly but has
not been signed or executed by any party. Therefore, the provision
which applies has to be decided by looking at the actual facts of
each case. The claim cannot be decided only on the basis of the
particular clause mentioned by the Petitioners, without examining
the circumstances stated in their applications and the other
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provisions which may apply.
17. The claim in Writ Petition No. 6199 of 2018 requires
consideration under Section 52. This section deals with a stamp
which has not been spoiled or made unfit or useless for its
intended purpose, but which the person does not immediately
require for use. It allows repayment when the stamp is given to the
Collector for cancellation and the person satisfies the Collector that
the stamp was purchased with a genuine intention to use it, that
its full price was paid and that it was purchased within the
prescribed period. Therefore, where the proposed transaction is
cancelled and the stamp remains unused, Section 52 may apply,
depending upon the facts and the conditions provided by law. The
requirement of giving the original stamp for cancellation has an
important purpose. It helps to prevent a person from receiving a
refund and thereafter using the same stamp for another document.
The State is justified in insisting that this safeguard should
ordinarily be followed. However, there is a difference between a
person who has the original stamp but refuses to surrender it and a
person who says that the stamp has been lost and wants to prove
the loss and non-use through other evidence. This difference has to
be considered while protecting public revenue.
18. Section 48 provides the period within which an application
for refund must be made. In cases falling under Section 47(c)(5),
the application must be made within six months from the date of
the instrument. In other cases, clause (3) provides for an
application within six months from the date of purchase of the
stamps. Therefore, the period which applies to a claim will depend
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upon the nature of the claim and the provision under which the
relief is asked for.
19. In Writ Petition No. 6199 of 2018, the ESBTR was purchased
on 8 September 2016 and the refund application was made on 9
January 2017. Therefore, the application was made within six
months from the date of purchase. The State has not pressed the
question of limitation as a ground for rejecting the claim in the
submissions made before this Court. Similarly, in Writ Petition No.
5964 of 2019, the refund application was registered as Refund
Case No. C.R. 904 of 2017, and no specific objection regarding
limitation has been raised in the submissions recorded before me.
Therefore, from the material available, limitation is not a ground
on which the orders under challenge can be upheld. The
Respondents rely upon Rules 22 and 22A of the Bombay Stamp
Rules, 1939. Rule 22 deals with the procedure to be followed after
the Collector sanctions an allowance or asks for evidence. Rule
22A deals with deductions to be made while granting an allowance
for spoiled, misused or unused stamps. In the case of unused
stamps, it refers to the person giving the stamp to the Collector for
cancellation. These Rules support the submission of the State that
the original stamp should ordinarily be surrendered and cancelled
before the refund is granted. However, the requirement of
producing the original document cannot be considered separately
from the other provisions which govern refund. Rule 21 of the
Bombay Stamp Rules, 1939, allows the Collector to require a
person claiming refund under Chapter V of the Act to give a
statement on oath or affirmation, or to file an affidavit explaining
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the circumstances in which the claim arose. The Collector may call
witnesses if required. This Rule shows that the circumstances of a
refund claim may be proved through evidence and enquiry.
Therefore, the claim has to be examined on the basis of the
material available and cannot be rejected without considering
whether the necessary facts can be proved.
20. The Maharashtra e-payment Rules provide that the
procedure for refund of stamp duty paid through an e-SBTR is the
same as the procedure applicable to an impressed stamp under the
Act. Therefore, payment through an ESBTR does not remove the
requirement of verification. At the same time, the authorities
cannot ignore the electronic records relating to the payment. The
Government Reference Number, details available in the Virtual
Treasury and other official records may help to establish whether
the payment was made, whether the ESBTR was used for any
instrument and whether a refund has been granted against it.
21. The submission of the State that the original receipts were
lost because of the Petitioners' negligence deserves consideration.
A person asking for refund must take reasonable care of the
relevant documents. Every claim cannot be accepted merely
because the applicant says that the original receipt has been lost. A
police complaint may show that the loss was reported, but it does
not prove all the facts which are necessary for refund. The
Petitioners must still establish the payment, the loss, the purpose
for which the receipt was purchased and that the amount was not
used for any other instrument. Similarly, the fact that the State has
not alleged fraud or giving of wrong information does not prove
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that the Petitioners are entitled to refund. At the same time, the
loss of the original receipt because of negligence does not
automatically allow the State to retain an amount which is
otherwise refundable under the law. The authorities have to
examine the claim on its merits. If the official records show that
the payment was genuine, that the ESBTR was never used for any
instrument and that no refund has been obtained against it, the
absence of the original receipt cannot be a answer to the claim.
The concern of the State about possible misuse can be dealt with
by proper verification and suitable safeguards. The claim cannot be
rejected by refusing to examine the records which are available.
22. The judgment relied upon by the Petitioners is relevant to
this issue. In Dr. Poornima Advani and Another , the original e-
stamp paper purchased for a property transaction was lost before
the transaction was completed. The purchasers then obtained a
fresh e-stamp paper and completed the transaction. Thereafter,
they applied for refund of the amount paid for the lost e-stamp
paper. The Delhi High Court directed refund of the principal
amount, and the matter ultimately reached the Supreme Court in
connection with the claim for interest. The reasoning of the
learned Single Judge of the Delhi High Court, as reproduced in the
Supreme Court judgment, is relevant to the present dispute. In
paragraph 19 of the Delhi High Court judgment, the learned Judge
considered whether relief could be denied to a person who had
lost the stamp paper merely because the statute did not specifically
provide for such a situation. The Court observed that the
expression “obliterate” appearing in Section 49(a) of the Indian
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Stamp Act, 1899, should include cases where a person asking for
refund has lost the stamp paper. In paragraph 20 of the Delhi High
Court judgment, the following observations were made:
“If the scheme, as discussed above, is kept in mind, the
respondents ought to refund stamp duty even in cases where
an applicant claims refund of stamp duty on account of loss
of e-stamp paper; subject to an enquiry establishing factum
of loss and adequate safeguards being put in.”
23. The same paragraph observed that if the State retained the
money even though the taxing event had not occurred, it would
amount to keeping money without authority of law.
24. These observations recognise two important requirements.
First, the person asking for refund must prove the loss and satisfy
the authority that the stamp has not been used. Second, the
authority should not refuse relief only because the original
document is missing, where the loss and the claim can be proved
through other evidence and proper safeguards can be taken.
However, the limits of the judgment relied upon by the Petitioners
must be kept in mind. The Supreme Court in Dr. Poornima Advani
mainly considered the claim for interest on an amount which had
been directed to be refunded. The case arose under the Indian
Stamp Act, 1899, and the provision considered by the Delhi High
Court was different from Section 47 of the Maharashtra Stamp Act.
The decision did not directly decide the meaning of Section 47 of
the Maharashtra Stamp Act. Therefore, it cannot be read as laying
down that every claim under the Maharashtra Act must be allowed
whenever the original ESBTR is said to have been lost.
Nevertheless, the reasoning of that decision is relevant while
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considering the refund provisions and the constitutional principle
relating to the retention of money by the State.
25. Article 265 of the Constitution of India provides:
“No tax shall be levied or collected except by authority of
law.”
26. The meaning of this provision is that the State cannot retain
an amount as tax when there is no legal basis for doing so. In the
present cases, the Petitioners are not claiming refund because the
amount of stamp duty was wrongly calculated. Their case is that
the amount was paid for a particular transaction, but the original
ESBTR was never used for that purpose. In Writ Petition No. 5964
of 2019, stamp duty was paid again for the same transaction. In
Writ Petition No. 6199 of 2018, the proposed agreement was not
executed because the booking was cancelled. If these facts are
proved from the official records, the State cannot justify keeping
the amount only because the original receipt has been lost.
27. The reasoning in Poornima Advani helps in considering the
argument of the State that the Stamp Act is a code and that the
Collector can grant refund only in the situations expressly
mentioned in the Act. The Collector must act according to law.
There is no general power to grant refund merely because a person
feels that it would be fair. However, the statutory provisions cannot
be read so narrowly that a genuine claim cannot even be examined
only because the original stamp paper is missing. The provisions
regarding refund, evidence, and enquiry have to be considered
together, keeping in mind the constitutional restriction against
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collecting or retaining tax without authority of law.
28. The concern of the State that the lost receipt may be misused
is genuine and cannot be ignored. The original ESBTR is an
important document, and its absence creates a risk which has to be
examined. However, the possibility of misuse cannot be treated as
a fact in every case where a receipt is lost. The authority can verify
the Government Reference Number, the amount paid, the name of
the person in whose favour the payment was made, the purpose
for which it was purchased and whether it was used for any
instrument. It can check whether a refund has been granted. If
required, the Petitioners may be directed to file affidavits, execute
indemnity bonds and give undertakings to compensate the State
for any loss caused by incorrect statements or misuse. These steps
can protect public revenue without refusing a genuine claim only
because the original document is not available.
29. I now consider the facts of Writ Petition No. 5964 of 2019.
The Petitioner paid stamp duty on 29 March 2017. The original
ESBTR was lost before it was used for the intended transaction.
Thereafter, the Petitioner again paid stamp duty on 4 July 2017 for
the same transaction, and the agreement was registered. The main
case of the Petitioner is that stamp duty was paid two times for one
transaction, whereas the first ESBTR remained unused. The second
payment and the completed registration are relevant facts which
support the Petitioner's claim. If the official records show that the
second payment was used for registration of the agreement and
that the first ESBTR was never used for any instrument, it would
mean that the State received stamp duty two times for the same
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transaction, although the first payment was not used for stamping
the registered agreement. In such circumstances, the State would
have to show a lawful basis for keeping both amounts. No such
basis has been pointed out in the submissions placed before me.
30. I am unable to accept the argument that the Petitioner's
negligence in losing the original ESBTR is enough to justify
rejection of the refund application. The loss is admitted. However,
the real question is whether the amount paid through that receipt
was used or whether the law otherwise permits the State to keep
it. Negligence may explain how the receipt was lost. It does not
establish that the amount was used for an instrument or that the
State is entitled to retain it after the second payment has been
verified. Therefore, the orders dated 3 March 2018 and 26 October
2018 cannot be upheld merely because the original ESBTR was not
produced. The payment and its non-use must be checked from the
electronic and other official records. If those records confirm the
Petitioner's case, the amount paid through the first ESBTR is
refundable, subject to any deduction permitted under the
applicable Rules. The authority cannot refuse refund only because
the original ESBTR has been lost.
31. I now consider Writ Petition No. 6199 of 2018. In this case,
the Petitioner paid Rs. 3,08,500 towards stamp duty for the
proposed agreement for sale of the flat. The Petitioner thereafter
asked for cancellation of the booking. The agreement for sale was
never executed. The original ESBTR was lost on 9 December 2016,
and a police complaint was made on 13 December 2016. The
refund application was made on 9 January 2017. The facts of this
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Petition are different from those in Writ Petition No. 5964 of 2019.
In the first case, the transaction was completed after stamp duty
was paid for the second time. In the present case, the proposed
purchase did not proceed and the agreement for sale was not
executed. The Petitioner's case is that the stamp duty paid for the
proposed agreement remained unused because the booking was
cancelled. The question is whether the loss of the original ESBTR
prevents the authority from examining this claim. The fact that the
Petitioner had cancelled the booking before the original receipt
was lost is relevant. However, cancellation of the booking and loss
of the receipt do not by themselves establish the right to refund.
The Petitioner must show that the payment was made for the
proposed agreement, that the agreement was never executed and
that the ESBTR was not used for any other instrument. The request
for cancellation of booking, police complaint, payment details and
records available with the registering authority are relevant for
deciding these facts.
32. If these facts are established, the claim cannot be rejected
only because the original ESBTR is missing. The provisions dealing
with spoiled stamps and stamps which are no longer required for
use must be considered by looking at the purpose for which the
stamp duty was paid and whether any instrument was executed.
Depending upon the facts, Section 52 may apply. The claim cannot
be rejected only because the Petitioner has relied upon Section
47(c)(5), if another provision of the Act applies to the facts. The
authority must consider the real nature of the claim and the
relevant statutory provision.
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33. I find that the reason given by the Respondents, namely, that
the original ESBTR was not produced, is not sufficient to justify
rejection of the claim in Writ Petition No. 6199 of 2018. The
authorities must verify the payment, cancellation of the booking,
non-execution of the agreement and non-use of the ESBTR from
the records available. If these facts are established and the other
requirements of law are satisfied, the stamp duty must be
refunded, after making any lawful deduction prescribed under the
applicable Rules.
34. The judgment in Poornima Advani considered the question of
interest on the amount retained by the State. In paragraph 17 of
the Supreme Court judgment, it was observed:
“Thus, when a person is deprived of the use of his money to
which he is legitimately entitled, he has a right to be
compensated for the deprivation which may be called
interest or compensation. Interest is paid for the deprivation
of the use of money in general terms which has returned or
compensation for the use or retention by a person of a sum
of money belonging to other.”
35. The Supreme Court observed that where the doctrine of
restitution applies to the facts of a case, interest should follow.
These observations show that wrongfully keeping money may give
rise to a claim beyond repayment of the main amount. However,
the submissions recorded in these Petitions relate to refund of
stamp duty, and no separate claim for interest, with its basis and
relevant period, has been placed before me. Therefore, I limit the
relief in these Petitions to the refund claim and do not grant any
separate amount towards interest.
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36. The amounts paid towards registration fees must be
considered separately from stamp duty. The present decision
concerns the rejection of claims under the provisions governing
refund of stamp duty. The question of refund of registration fees
has to be decided under the provisions applicable to those fees.
This judgment does not mean that the State can keep registration
fees without lawful authority. However, any claim for their refund
must be considered under the relevant statutory provisions.
37. On considering the facts and the submissions made by both
sides, I find that the Petitioners cannot receive refund merely by
stating that the original ESBTRs were lost. The State is entitled to
verify the payments and take steps to prevent misuse. At the same
time, the State cannot reject the claims only because the original
ESBTRs are not physically available, when the payment, loss and
non-use can be established through official records and other
reliable evidence. The orders under challenge have not considered
this difference. Therefore, they cannot be sustained on the ground
stated by the authorities.
38. In the result, both Writ Petitions are allowed in the following
terms:
(a) The order dated 3 March 2018 passed by the District
Registrar and Collector of Stamps, Pune City, in Refund Case
No. C.R. 904 of 2017 and the order dated 26 October 2018
passed by the Chief Controlling Revenue Authority in Appeal
No. 78 of 2018 are quashed and set aside;
(b) The order dated 2 August 2017 passed in the refund
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proceedings concerning the Petitioner in Writ Petition No.
6199 of 2018 and the order dated 20 December 2017 passed
in Appeal No. 286 of 2017 are quashed and set aside;
(c) The concerned refund authorities shall verify the
ESBTR and payment particulars from the Government
Reference Number, Virtual Treasury and other available
official records. In Writ Petition No. 5964 of 2019, they shall
verify whether the first ESBTR remained unused and
whether the second payment was used for the registration of
the agreement. In Writ Petition No. 6199 of 2018, they shall
verify whether the proposed agreement for sale was
cancelled and never executed, and whether the ESBTR
remained unused;
(d) The Petitioners shall furnish such affidavits, indemnity
bonds and undertakings as may reasonably be required to
establish the claims and protect the State against any misuse
of the lost ESBTRs. The authorities shall make appropriate
entries in the available official records to guard against any
use of the lost receipts, to the extent the applicable system
permits;
(e) If the verification confirms the facts stated above and
the other applicable statutory requirements are satisfied, the
concerned authority shall grant the refund of stamp duty,
after making only such deductions as are permitted by law.
The refund shall not be refused solely because the original
ESBTR has been lost;
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(f) The verification and consequential refund process shall
be completed within eight weeks from the date on which the
Petitioners furnish the required affidavits and undertakings;
(g) The question of refund of registration fees, if pressed,
shall be considered separately under the applicable
provisions governing those fees;
39. Rule is made absolute in the above terms in both the
matters. There shall be no order as to costs.
(AMIT BORKAR, J.)
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